Director of Public Prosecutions (Cth) v Purcell (a pseudonym)
[2016] VCC 574
•09 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAMERON PURCELL (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 05 May 2016 | |
DATE OF SENTENCE: | 09 May 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v Purcell (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 574 | |
REASONS FOR SENTENCE
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Subject: Criminal Law- Sentencing- Historical Sexual Offending- Long Delay- Good rehabilitation prospects- Imposition of a Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. A. Hassan (Plea) Ms K. Ottrey (Sentence) | John Cain Solicitor For Public Prosecutions |
| For the Accused | Ms J. Parnell | Dribben & Brown |
HER HONOUR:
1 Kameron Purcell,[1] you have pleaded guilty to two charges of an indecent act with a child under 16.
[1] This is a pseudonym.
2 The charge of an indecent act with a child under 16 is a serious one, and that is reflected in the maximum penalty prescribed by law, and that is ten years’ imprisonment.
3 In addition, you admitted a criminal record. There is one court appearance at the Brisbane District Court, Queensland on 4 March 2005 in respect to defrauding the Commonwealth and dishonestly obtaining financial advantage by deception for which you were convicted and received a gaol term.
4 The Crown prosecutor, Ms Hassan, conceded the prior conviction is of no relevance in the sentencing exercise.
5 I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read to the court at the plea hearing.
6 The offending took place on a single occasion and involved two separate acts. The victim is Dima Cohen[2], who was aged between 13 and 14 at the time of the offending. The offending occurred between 30 October 2006 and 29 October 2007. You were aged between 39 and 40. You are currently aged 48.
[2] This is a pseudonym.
7 Ms Cohen was then in a relationship with Brock Ortego[3], whom I will refer to as "Brock". At that time, you were in a long-term relationship with Brock's mother. Ms Cohen had met Brock through a mutual friend and, shortly after meeting him, she ran away from home to live with him.
[3] This is a pseudonym.
8
When the offences occurred, you were separated from Brock's mother.
Brock Ortega and Ms Cohen were both living with you at a property in Grandview Avenue, Rye. They would sleep in Brock's bedroom but occasionally slept in a caravan that was parked in the driveway of the premises.
9 The context to the offending was that Brock Ortega and Ms Cohen had been at a friend’s house drinking alcohol. They returned to home and continued drinking. The victim recalled that you joined them, and you were drinking and provided alcohol. She became intoxicated and, at some point in time, the three of you began playing a game of “truth or dare”. It began harmlessly enough. You dared Ms Cohen and Brock Ortego to kiss each other, which they did, and then the game turned more serious. At some point you placed your hand down the victim’s top underneath her bra and touched her breast. (Charge 1, indecent act with a child under 16). The victim was intoxicated and unsure how long you touched her breast.
10 Sometime after that, Ms Cohen and Brock Ortego went outside to the caravan and lay down on the bed. You then entered the caravan. At some point, the victim’s pants and underwear were pulled down, but she was unsure how this occurred. You stood behind the victim and touched her vagina with your fingers. (Charge 2, indecent act with a child under 16). You eventually left the caravan and Brock Ortego and the victim went to sleep.
11 Shortly afterwards, the victim ended her relationship with Brock Ortego and returned to live with her parents.
12 In early 2013, Brock Ortego reported the matters to the police. This was in the context of reporting other matters that he alleged against you.
13 In February 2013 the victim was contacted by the police and she agreed to make a statement.
14 On 21 February 2013 you were arrested and taken to the Frankston Police Station, where you participated in a taped record of interview. You confirmed the details of the various relationships, but denied knowing anything about a sexual assault or anything that happened with the victim, and denied being been alone with the victim and Brock Ortego in the caravan, or ever playing the game “truth or dare” with them.
15
Following the laying of charges, there was a committal hearing on
30 August 2013 during which the victim was cross-examined. The matter was listed for trial and that commenced on 1 July 2014. The victim attended, gave evidence and was cross-examined. The trial was adjourned as Brock Ortego was unable to give evidence. Thereafter, there were investigations made by police relating to allegations concerning other witnesses and the trial concerning the allegations made by Brock Ortego did not proceed. A new trial date of 1 February 2016 was provided. The matter was eventually resolved on
8 January 2016 when you entered a plea of guilty to the current charges.
16 The trial indictment originally included these charges together with a charge of sexual penetration of a child under the age of 16, and other charges relating to Brock Ortego that were not proceeded with once the matter was resolved. A plea indictment was filed over.
17 Mr Purcell, your offending is objectively serious having regard firstly, to the maximum penalty prescribed by law, ten years' imprisonment, and also the fact that you committed indecent acts against a child who was aged between 13 and 14. However, I do accept that these charges occurred during the course of the same evening and the acts occurred within a relatively short space of time of each other and were not of a lengthy duration. Nonetheless, it is serious for a man of your age to have touched the breast of a child and also to have touched the child’s vagina.
18 I do accept, having regard to all the material put at the plea hearing, that this was an isolated, one-off occasion and that it was opportunistic offending, and it occurred whilst you were under the influence of alcohol. Whilst providing a context and an explanation for your behaviour, it in no way excuses your behaviour. The offence is one that Parliament has introduced in order to protect young children from the unwanted sexual advances by older, more powerful individuals, and such behaviour must be condemned and is deserving of stern punishment.
19 Mr Tiwana, on your behalf, submitted that in all the circumstances the appropriate disposition is a community correction order.
20 Ms Hassan, on behalf of the Crown, submitted, having regard to the seriousness of the offending, in particular the touching of the young child’s vagina, a short term of imprisonment to be served followed by a community correction order was appropriate. She conceded that it was single-occasion offending. She further conceded that the offending occurred within a complicated family dynamic. She did not contest any of the matters put in mitigation. She submitted that any findings in respect to remorse had to be tempered having regard to the particular history of the matter and the fact that the victim was required to give evidence and be cross-examined at both the committal and trial. She conceded that you had no role to play in the delay in the completion of the proceedings.
21 A victim impact statement was sought from Ms Cohen. However, she has not provided one to the informant.
22 I have accepted all the matters put in mitigation. Your plea of guilty was entered following contested committal and a trial. Notwithstanding it was entered at a late stage in the proceedings, I consider that there is still utility in your plea. You spared the State the expense and inconvenience of a conducting a trial and, in that regard, you have facilitated justice and your sentence will be discounted accordingly. I accept that the plea is some evidence of remorse and is an acknowledgement on your behalf that your behaviour on this occasion was wrong, but I do accept that the aspect of remorse has to be tempered, having regard to the fact that the victim did give evidence at both committal and trial, and was cross-examined on both occasions.
23 When you were examined by Ms Pamela Matthews, consultant psychologist, you stated that you only have a limited memory of the events because of your heavy drinking but, when asked about the offending, you said that you were sorry for your actions.
24 Furthermore, I have had regard to the letter from Mr Jamie Phillips, your long-term friend, that was provided to the court. He confirms that he believes that you are remorseful and he states that he is glad that you have accepted responsibility for your actions.
25 You are now aged 48, and the Crown accepts that the earlier offending is of no relevance in the sentencing exercise. From having read all the reference materials that were provided to the court, it is clear that you are considered to be a person who is otherwise of good character. There are no relevant prior convictions, no subsequent matters, and nothing pending.
26 In the past, you completed Year 10 at Rosebud High School and then completed a four-year apprenticeship as a pastry chef. You have a long and established work history. You have worked in a number of bakeries over the years, and work as manager of the bakery section of the Coles Supermarket, Mornington. You worked in Victoria and Queensland for at least 10 years in this role. Whilst you were living in Queensland, you were dealt with in respect to the dishonesty offences that related to claiming GST in circumstances where you are not entitled to do so.
27 Currently, you run a motel business in Rosebud that you have been conducting since 2012. You initially began working there as a cleaner in 2009, and you worked your way up to become manager in 2010. Eventually, in 2012, you took over the management of the lease and you have continued to run the lease since then.
28 The owner of the lease, Ms Lateefa Wazir, confirmed in her letter to the court that you have successfully run the motel, and that she has total trust in your abilities. She is aware of the present proceeding and was shocked concerning your involvement. Notwithstanding that, she has maintained her agreement to sub-lease the property to you and to continue with the present arrangement. She has never had any complaints or problems from anyone associated with the motel.
29 You have long-term connections with the community through your involvement with the Eastbourne Netball Club over a three-year period from 2007. You were involved coaching, working as the secretary of the committee and president of the club. You were the area representative for Nepean Netball Association for one year, and you were instrumental in raising $20,000 for the club through voluntary donations.
30 Your family have had a long association with the Salvation Army. Since 2007, you volunteered with the Salvation Army Rosebud branch. That has involved sorting out and delivering donations. You are registered with the Salvation Army Emergency Services team. During the 2008 bushfires, following a request, you volunteered at Kinglake. There you managed the catering trucks, cooking and delivering meals to emergency workers, and that was for an intensive period of work, working long hours over the time required.
31 Donald Scarlet confirmed in his letter details of your involvement with Rosebud Salvation Army. He stated that his belief is that you are genuine and you act appropriately and in a courteous manner towards others, both young and old.
32 In addition to those good works, you have also provided emergency accommodation to victims of domestic violence and the homeless through SalvoCare.
33
Your parents are both very elderly and sick. Your father is 89, and your mother is 85, and they reside together in a retirement village nearby. You are the only family member in Victoria who can assist your parents as your remaining siblings live interstate or far away. Your father is very frail, suffers from Alzheimer’s disease and many other medical conditions, as documented by
Dr Kefaladelis.
34 Your parents require your assistance to take them to their medical appointments and to undertake shopping tasks on their behalf. You visit them regularly, twice to three times per week, and have dinner with them every Sunday.
35 I have had regard to the long delay since this offending occurred. There has been more than nine to ten years since the offending and, over that time, you have demonstrated that you have been able to maintain full-time employment, undertaken various voluntary roles, made contributions to the community and have not reoffended.
36 Ms Hassan confirmed that in no way is the delay attributable to any actions on your behalf.
37 I have regard to the principles outlined in the decision of R v Merrett, Piggott & Ferrari.[4] You have utilised the time during the period of delay appropriately and that reflects positively upon your rehabilitation prospects, which I consider to be excellent.
[4][2007] 14 VR 392 at paragraphs 35 and 49
38 Ms Pamela Matthews has reviewed you on three occasions, 23 and 29 March and 3 May 2016. She undertook a detailed risk assessment; and in particular, she undertook the risk for sexual violence protocol.
39 Her view is, having regard to the fact that this was a one-off event on a single day in the period October 2006 to October 2007, there was no evidence of escalating sexual violence, that you did not display inappropriate behaviour that supports or condones sexual violence and sexual deviance, that she did not consider that you met the DSM-5 criteria for paedophilia or other paraphiliac disorders. You do not suffer from any psychopathic personality disorder. She noted some mild to moderate features of depression, which she said was reactive to your situation, and an associated mood disorder.
40 She noted a history of alcohol abuse following your release from custody in 2006/2007, and that resolved about four years ago, when you took over the managerial role at your motel.
41 You do not demonstrate any problems in establishing intimate relationships or non-intimate relationships.
42 You disclosed to her past history of child abuse. As a child, you were sexually abused by a family friend, and that impacted significantly on your self-esteem and also your capacity to trust others with whom you have a relationship, including family.
43 Overall, having regard to all the relevant risk factors, she noted that your risk of reoffending in a similar matter is estimated to be low. However, she did suggest that, with further attention to underlying issues such as interpersonal trust issues, insight concerning your own emotional world and that of others, including emotional nuances of interpersonal relationships, social supports, management of self-esteem and assertion, that your risk could be further lowered.
44 She confirmed that you do demonstrate some features of post-traumatic stress disorder and made recommendations to reduce reoffending, including treatment addressed at dealing with your underlying emotional issues. She suggested a referral to a clinical psychologist. She confirmed that she would recommend two to three further sessions of sex offence treatment, in addition to those treatments already completed with her. In her view, a further period of time in custody risked a further period of emotional collapse. From a rehabilitative perspective, she recommended consideration of a community correction order with a treatment plan.
45 Overall, I have formed the opinion, notwithstanding the serious nature of your offending, that a community correction order is an appropriate penalty, having regard to your particular personal history and background, current circumstances and the all matters relied on in mitigation of penalty.
46 Denunciation and general deterrence are important sentencing considerations in respect to these sorts of offences. As was said in the guideline judgment of the Court of Appeal in Boulton v The Queen[5], a community correction order can powerfully denounce an offender’s conduct whilst simultaneously benefiting the offender and the community. The availability of such an order has dramatically changed the sentencing landscape in Victoria, and sentencing courts can now choose a sentencing disposition that enables all the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to an option (imprisonment), which is skewed towards retribution and deterrence.
[5] [2014] VSCA 342.
47 It is clear from Boulton that a community correction order is now available for serious offences, including some sexual offences where an immediate term of imprisonment was previously imposed.
48 I have further had regard to s.5(4)(c) of the Sentencing Act 1991 and the principles of parsimony.
49 Overall, I consider that a community correction order can achieve all the purposes for which a sentence is to be imposed, and as stated earlier, in addition to the core conditions, I propose adding the following special conditions, namely, supervision, community work and treatment to cover the matters raised by Ms Matthews in her report. Such a community correction order can give effect to the principles of punishment, denunciation, general and specific deterrence. You have been assessed as being suitable for such an order, and your risk of general reoffending has been assessed as low. Could you please stand now, Mr Purcell?
50 In respect to the two charges of indecent act with a child under 16, you will be convicted and placed on a community correction order of 18 months' duration with the following special conditions:
·supervision;
·100 hours’ community work;
·assessment and treatment for alcohol, and;
·offender behaviour programs addressed at dealing with your underlying psychological issues as set out in Ms Matthews' report.
51 Finally, because indecent act with a child under 16 is a Class 2 offence, the Sex Offenders Registration Act 2004 (SORA) applies, and you are now a registered offender, and that comes about automatically because you have been convicted of two Class 2 offences under that Act.
52 Therefore, pursuant to s.11(1) of the Act, you must comply with reporting obligations, and the period is eight years. (That is because pursuant to s.34(3)(a) of the Act (SORA), these offences are treated as a single Class 2 offence and therefore the reporting period is eight years).
53 Shortly, my associate will approach you with both the Community Correction Order for you to sign, and also with the notification of the reporting requirements under the Sex Offenders Registration Act, which I will ask that you sign. Ms Parnell, can you, once we get the material printed out and I have signed the order, could you accompany my associate and just get your client to sign those? And once they're all signed, we will give copies for you to provide to your client, and then he will be free to go.
MS PARNELL: Thank you, Your Honour.
HER HONOUR: All right, so he will approach now. We can adjourn the court.
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